The Tohono O’odham Nation is weighing its next legal steps after a federal judge ruled against the tribe’s bid to stop border wall construction on its land.
Roughly 62 miles of the tribal nation’s 2.8 million acre boundary are along the Arizona-Mexico border, and the federal government hasn’t tried to build a wall there.
But now, the stretch is included in the Trump administration’s Smart Wall — a multibillion-dollar project that will include roads, surveillance tools and, in some cases, two parallel steel bollard walls.
The tribe’s suit argues construction along inside the nation disregards sovereign tribal boundaries, which can only be altered by Congress. Their request for a preliminary injunction to stop the work was denied by U.S. District Judge Richard Leon in a late ruling Friday. His ruling cited the government's plans to built inside the Roosevelt Reservation, a 60-foot stretch of land along the border that is under federal jurisdiction.
Robert Miller is a tribal judge, law professor at ASU, and a citizen of the Eastern Shawnee Tribe.
He says preliminary injunctions are hard to win because they must meet four strict stipulations. In this case, he says, the judge ruled the tribe did not meet any of the four.
“The court thinks they’re not liable to win, they think it’s not in the public interest to stop the federal government from building this wall … of course they reference the drugs that have crossed the Arizona border, and the illegal immigrants crossing the Arizona border,” he said.
A spokesman with the Tohono O’odham Nation says the tribe is weighing its legal options.
“Too many critical issues were not adequately addressed, such as inevitable impacts construction will have on the Nation’s land and the permanent destruction of sacred sites,” Tohono O’odham Chairman Verlon Jose said in a statement after the ruling.
While Leon’s ruling denied the preliminary injunction, it said federal authorities must consult with the tribe. Miller says historically, tribes don’t have the power to stop a federal action — even when consulted.
“And so consultation has so often been a letter from the feds going ‘we’re going to do X, what are your thoughts? They write the tribal council two months in advance. They’ve already made their decision, so that’s not true consultation,” he said.
In an email, a DHS spokesperson said the agency “values its relationship with the Tohono O’odham Nation and remains focused on open communication and minimizing impacts.”
“Secretary Markwayne Mullin is a citizen of the Cherokee Nation and made clear during his confirmation hearing that he respects tribal sovereignty,” the email read. “DHS is committed to ongoing coordination with stakeholders, including tribal nations, throughout planning and construction activities.”
The agency did not respond to questions about the status of wall construction.
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